open
adj.
Law. To make accessible, visible, or available; to submit to review, examination, or inquiry through the elimination of restrictions or impediments.
Well first off, let me get some references and resources out of the way.
We’ve been reading/watching/discussing the following for the past few of weeks:
TED.com videos:
Larry Lessig on Laws that Choke Creativity
Lawrence Lessig: Re-examining the Remix
Charles Leadbeater on Innovation
Yochai Benkler on the New Open-Source Economics
The Creative Commonsbook:
The Power of Open
And the documentary:
RiP! A Remix Manifesto which can be watched here at hulu.com.
Now some more definitions of their frequently used terms, plus some legal jargon from a variety of free, open, online dictionaries and legal dictionaries and wikkis:
re·mix
verb (used with object)
1. to mix again.
2. to mix and re-record the elements of (a musical recording) in a different way.
mash-up
noun
1. Music, Slang . a recording that combines vocal and instrumental tracks from two or more recordings.
2. Slang . a creative combination or mixing of content from different sources: movie mash-ups; a Web mash-up that overlays digital maps with crime statistics.
col·lab·o·ra·tion
noun
1. the act or process of collaborating.
2. a product resulting from collaboration: This dictionary is a collaboration of many minds.
me·di·a
noun
1. a plural of medium.
2. ( usually used with a plural verb ) the means of communication, as radio and television, newspapers, and magazines, that reach or influence people widely: The media are covering the speech tonight.
public domain
noun
Law. 1. the status of a literary work or an invention whose copyright or patent has expired or that never had such protection.
cop·y·right
noun
Law. the exclusive right to make copies, license, and otherwise exploit a literary, musical, or artistic work, whether printed, audio, video, etc.: works granted such right by law on or after January 1, 1978, are protected for the lifetime of the author or creator and for a period of 50 years after his or her death.
copyright infringement
noun
Law. the act of violating the copyright owner’s exclusive right through unauthorized or prohibited use of copyrighted material. A copyright owner’s right is an exclusive one and is granted under the federal Copyright Act. An infringement of rights of the copyright owner occurs when:
1. there is a reproduction of work;
2. there is a derivative of works prepared based on the work;
3. there is a distribution of copies of the work;
4. the work is performed in public;
5. there is public performance of sound recordings.
intellectual property
noun
Law . property that results from original creative thought, as patents, copyright material, and trademarks.
fair use
noun
Law. a use of copyrighted material that does not constitute an infringement of the copyright provided the use is fair and reasonable and does not substantially impair the value of the work or the profits expected from it by its owner; also: the privilege of making a fair use of copyrighted work.
It may seem like I’m just mindlessly taking up
space in this post, but I’m really just interested in some of the jargon that
keeps popping up in all of this, and the way it all relates to each other. Much of it is so simple it doesn’t require a
second thought. Words like ‘remix’. It’s something that’s mixed…again. Got it.
And it’s not that I don’t comprehend the rest, I get that too, but I find
myself dwelling on a few of the phrases, and most of all on the phrase ‘intellectual
property’.
So I started digging around the internet, mostly
in online legal dictionaries. Of course I don’t know how up to date these are
or who compiled them or how legitimate their sources were, but I was just
trying to get a vague idea of what the opinions in the legal community are
about this type of property and how and why we might need to protect it. I
certainly wasn’t trying to create an argument that would hold up in court. I
think I’m really just having trouble grasping this idea of, more or less, being
able to claim physical ownership of an idea, or an expression of an idea. The
whole thing just seems very wishy-washy.
One of the lines from RiP! resonated on that chord for me. It was when the man standing in front of the group of college students trying to explain intellectual
property with the example of a love song. I believe it was about the writer of
the song owning the rights to their unique expression of love. I just found
this amusing because, honestly, how many unique expressions of love can there
possibly be? We’re talking about an emotion that human beings have been trying
to describe since we first learned to grunt. So I can own an expression of an emotion? This just seems a bit narcissistic to me. Don’t get me wrong, I’m all about
artist getting their fair credit and being properly compensated for their work,
but in the end isn’t a huge part of any art or form of expression the shared
experience? Why express if you don’t want the person to whom you are expressing
to participate in the expression? If I took this to a simpler level, say I told
someone I loved them in some particular way, and then they responded with the
same phrasing, wouldn’t it be a tad unhealthy for me to start our relationship
by immediately charging them a $250,000 fine for their reciprocation of my
expression? Maybe we should look at the fan-artist relationship with the same
skepticism.
Getting back to my internet digging, I hopped around a few different places, reading bits here and there. Two things stuck out for me.
First is the ‘minimal creativity requirement’ for copyright protection. There are further details at the link, but the first two paragraphs really cover it:
“The copyright law requires that for a work to be protected by copyright, it must be original and creative. This means that the work must have been developed independently by its author, and should have some creativity involved in the creation. A derived work is based in part on another work, but it still qualifies for separate copyright protection.
Creativity is therefore one of the basic requirements for copyright protection. To meet this criterion, a work must include something that is above and beyond the original. Though verbatim use is not considered original, reference to the original work that is used to discuss a new concept is considered original. The creativity therefore need only be slight for the work to be eligible for protection.”
In regards to remix artists, does there art not qualify as a derivative of the previous work? They are constructing something new, creative, and original. How can it be a copyright infringement if it is but a reference to the old concept to present the new, and therefore eligible for its own protection?
Secondly is our right to intellectual freedom. Under article 19 of the Universal Declaration of Human Rights:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
As a nation we’ve decreed that we have the right to express our ideas through any media, but now we’re trying to limit that right for future generations.
What was number three on the remix manifesto? Oh yes, “our future is becoming less free.”